¹ 16 Nov 1972, 1037 UNTS 151 [‘WHC’].Google Scholar

² WHC, preamble, second recital.Google Scholar

³ Ibid, fifth recital.

⁴ Ibid, sixth recital. Contrary perhaps to common assumption, the phrase ‘the world heritage of mankind as a whole’ found in this preambular recital refers to all cultural and natural heritage covered by the Convention, and not merely to those select properties inscribed on the so-called ‘World Heritage List’ pursuant to Art 11 (2). Cf, for example, Art 6 (1), where the term ‘world heritage’ is used to denote ‘the cultural and natural heritage mentioned in Articles 1 and 2’ (viz all heritage protected by the Convention), as distinct from ‘the cultural and natural heritage referred to in paragraphs 2 and 4 of Article 11‘ (viz only heritage included in the World Heritage List and the ‘List of World Heritage in Danger‘ respectively), as found in Arts 6 (2) and 12. See, in this regard, Richardson v Forestry Commission (1987–1988) 77 ALR 237/90 ILR 58, High Court of Australia, at 242/63, per Mason CJ and Brennan J.

⁵ WHC, fourth recital.Google Scholar

⁶ Ibid, Art 4.

⁷ Ibid, Art 1. The obligation imposed by Art 4 arises regardless of whether the cultural heritage in question is inscribed on the World Heritage List. Art 4—like Arts 6 (1) and 6 (3)— speaks of ‘the cultural and natural heritage referred to in Articles 1 and 2’, rather than ‘the cultural and natural heritage referred to in paragraphs 2 and 4 of Article 11‘, as used in Arts 6 (2) and 12; and Art 12 makes it clear that ‘[t]he fact that a property belonging to the cultural or natural heritage has not been included in [the World Heritage List] shall in no way be construed to mean that it does not have an outstanding universal value for purposes other than those resulting from inclusion in [the List].‘ In practical terms, the obligation laid down in Art 4 applies to all cultural and natural heritage either inscribed on the World Heritage List, included in a so-called ‘;tentative list’ submitted by the State Party on whose territory it is situated in accordance with Art 11 (1), or otherwise identified and delineated by that State Party in accordance with Art 3. See, eg, Queensland v Commonwealth of Australia (1989) 86 ALR 519/90 ILR 115 at 524–6/129–31, per Mason CJ, Brennan, Deane, Toohey, Gaudron & McHugh JJ, and especially at 134/528, per Dawson J; see also Richardson v Forestry Commission, above, n 4, where a conclusion to this effect is implicit in the various judgments.

⁸ WHC, Art 4. In fulfilment of Art 4's general duty, each State Party subscribes in Art 5 to a set of specific obligations in respect of cultural heritage situated on its territory, ‘in so far as possible, and as appropriate for each country’ (ibid, Art 5, chapeau). Additionally, States Parties recognize in Art 6 (1) that ‘such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate’, and undertake in Art 6 (3) ‘not to take any deliberate measures which might damage directly or indirectly the cultural…heritage…situated on the territory of other States Parties to [the] Convention’.

⁹ Articles on Responsibility of States for Internationally Wrongful Acts, annexed to GA res 56/83,12 Dec 2001 [‘ARSIWA’]. The States Parties to the WHC obviously constitute ‘a group of States’ within the meaning of Art 48 (l)(a). See also International Law Commission [‘ILC’], Report on the work of its fifty-third session (23 April-1 June and 2 July-10 August 2001), UN Doc A/56/10, commentary to ARSIWA Art 48, paras (6) & (7), 320–1. The obligations falling within the scope of Art 48 (l)(a) ‘are not limited to arrangements established only in the interest of the member States but would extend to agreements established by a group of States in some wider common interest’: ibid, para (7), 320–1; see also J Crawford, The International Law Commission's Articles on State Responsibility. Introduction, Text and Commentaries (Cambridge Cambridge University Press 2002) 43.

¹⁰ The lawfulness of countermeasures by non-injured States is an open question: see Conclusion, below n 117, for more. In addition, both countermeasures and judicial proceedings face formidable obstacles in practice, and not just those considered in the Conclusion, below. For a start, it is not always easy to identify a breach of the Convention. The obligations laid down by Art 4 are couched in terms (‘all it can do’, ‘to the utmost of its own resources’, ‘where appropriate’) which allow State Parties such a measure of implementing discretion as to make ‘second guessing‘ tricky for other States; and while conventional discretions of this nature must, in the final analysis, be subject to the requirement of application in good faith (see Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331 [‘VCLT’], Art 26, as declaratory of general international law, and Gabcikovo-Nagymaros Project (Hungary I Slovakia), Judgment, ICJ Rep 1997,7, at para 142), it is understandable and proper that other States should be reluctant to substitute their appreciation of the possibility and appropriateness of action for that of the state on which Art 4 is incumbent. In practice, formal invocation of responsibility is only foreseeable (and only then with a strong dose of optimism) in flagrant cases of deliberate destruction. A similar hurdle is posed, mutatis mutandis, by the fact that the characterization of property as being ‘of outstanding universal value’ within the meaning of Art 1, and hence covered by the Convention in the first place, falls by virtue of Art 3 to the state on whose territory the property is situated.Google Scholar

¹¹ See also Barcelona Traction, Light and Power Company, Limited, Second Phase, ICJ Rep 1970 3, at para 33, which also refers synonymously to ‘obligations erga omnes’. ‘All States are by definition members of the international community as a whole…’: ILC, above, n 9, commentary to ARSIWA Art 48, para (10), 322. Note that the identical term ‘the international community as a whole’ is found in WHC, Art 6 (1). Needless to say, neither ‘the international community as a whole’ nor, for that matter, ‘mankind as a whole’ enjoys international legal personality in its own right: see, eg, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Rep 1971, 16, diss op Fitzmaurice at para 33; J Crawford, ‘Responsibility to the International Community as a Whole’, in Crawford, J, International Law as an Open System. Selected Essays (London 2002) 341 et seq, at 344.Google Scholar

¹² See VCLT, Art 34, as declaratory of general international law on point. An exception appears to exist as regards treaties establishing an international status or regime: see, generally, Jennings, R and Watts, A (eds) Oppenheim's International Law. Volume 1. Peace (9th edn London 1996), parts 2–4, 1205–6;Google ScholarMcNair, A, The Law of Treaties (OxfordOxford University Press 1961), 265–71;Google ScholarCahier, P, ‘Le probléme des effete des traités à l'egard des Etats tiers’, 143 RCADI (1974-III) 589 at 660–77.Google Scholar Despite the superficial attraction of the argument, however, the WHC is not such a treaty.

¹³ Strictly speaking, it is breach of the Convention, not the Convention itself, which would create the right to invoke responsibility. But it is reasonable, for present purposes, to assimilate the former to the latter.Google Scholar

¹⁴ See VCLT, Arts 34 and 36.Google Scholar

¹⁵ See ibid, Art 36 (1).

¹⁶ See ibid.

¹⁷ See ibid.

¹⁸ Moreover, it seems inequitable that non-States Parties, in their capacity as members of ‘the international community as a whole’, should benefit from the right enjoyed by States Parties to compel performance of the Convention without sharing the duty imposed on the same ‘international community as a whole’, by Art 6 (1), to cooperate in the protection of the world cultural and natural heritage: see, in this light, North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), ICJ Rep 1969 3, at para 28; and a third party's consent to the incurring of a treaty obligation must be express and expressed in writing: see VCLT, Art 35. No such written assent has been given by any of the non-State Parties to the WHC. (As it is, there is no indication that the States Parties intended to create third-party obligations anyway.)Google Scholar

¹⁹ International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3 [hereafter,‘ICESCR’[. Art 15 provides in relevant part: 1. The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life…See also General Discussion on the Right to Take Part in Cultural Life as recognized in Article 15 of the International Covenant on Economic, Social and Cultural Rights, UN Doc E/1993/22, Chap VII [hereafter, ‘General Discussion’]. Article 15 of the ICESCR embodies in binding treaty form ‘the right freely to participate in the cultural life of the community’ recognized by Art 27 of the Universal Declaration of Human Rights, GA res 217 A (III), 10 Dec 1948. As interpreted by the Committee on Economic, Social and Cultural Rights, in an illustration of the wider normative influence of the WHC, Art 15 (l)(a) of the ICESCR encompasses a positive duty to preserve the physical state of cultural heritage: see, eg, the Committee's comments at UN Docs E/1991/23, para 79; E/1992/23, paras 310, 312; E/1993/22, para 186. This duty encompasses an obligation to protect such heritage from vandalism and theft (see E/1993/22, para 186), as well as a prohibition on its deliberate destruction (see E/1995/22, para 136)Google Scholar

²⁰ See Revised Guidelines regarding the Form and Contents of Reports to be submitted by States Parties under Arts 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, UN Doc E/1991/123, 88 at 108, para 1 (f); General Discussion, above, n 19, para 213.Google Scholar

²¹ See UN Doc E/CN.4/1994/73, paras 118–22.Google Scholar

²² Ibid, para 120. The UN Commission on Human Rights took note of the Special Representative's report, and his recommendations and conclusions, ‘with interest’—‘in particular the identification of priority areas requiring urgent attention’: Commission on Human Rights res 1994/1961, 4 Mar 1994, para 8, chapeau. The first of these priority areas was ‘[t]he devotion of proper resources…for [inter alia] the defence of cultural treasures, especially Angkor Wata’: ibid, para 8 (a).

²³ If they were to exist, such obligations would, of course, arise whether or not a State was a Party to the WHC. That is, they would be owed not simply to but also by all States.Google Scholar

²⁴ Note that it is the practice of States alone that is relevant to the formation of a customary international rule, at least in this context. As such, the diplomatic activity and statements of the UN Secretary-General and of the Director-General of UNESCO in relation to the Buddhas of Bamiyan, as well as the statement made by the Chairperson of the World Heritage Committee in this regard, can—for strict legal purposes—be ignored. The same goes for statements made about the Buddhas by various non-governmental organisations. Note also that the extremely widespread and representative participation of states in the World Heritage Convention itself (a treaty which, when drafted, was clearly not declaratory of existing custom) does not, in itself, indicate that the obligations embodied therein have emerged as rules of general international law: see Baxter, RR, ‘Treaties and Custom’, 129 RCADI (1970) 25 at 64 and 73Google Scholar

²⁵ For a brief explanation of the workings and institutional status of UNESCO recommendations and declarations, see Lefranc, O, ‘Les problemes juridiques poses devant la XII^e session de la Conference Generale de l'UNESCO (Novembre–Décembre 1962)’ (1962) 8 AFDI 638 at 657–8, 662–6Google Scholar; Saba, H, ‘Unesco and Human Rights’, in Vasak, K and Alston, P (eds) The International Dimensions of Human Rights. Volume 2 (Westport/Paris 1982), 401 ff, at 402–3;Google ScholarMarks, SP, ‘Education, Science, Culture and Information’, in Schachter, O and Joyner, CC (eds) United Nations Legal Order. Volume 2 (CambridgeCambridge University Press 1995), 577 ff, at 578–82, 621–5.Google Scholar

²⁶ Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage, 16 Nov 1972, reproduced in Conventions and Recommendations of Unesco concerning the protection of the cultural heritage (Paris 1985).Google Scholar

²⁷ Ibid, preamble, third recital.

²⁸ Ibid, preamble, fifth recital.

²⁹ Ibid, Art 1.

³⁰ Ibid Art 4.

³¹ Recommendation on Participation by the People at Large in Cultural Life and their Contribution to It, 26 Nov 1976, UNESCO Doc 19C/Resolutions, Annex I, 29.Google Scholar

³² Ibid, preamble, first recital. Art 27 (1) of the Universal Declaration of Human Rights, GA res 217 A (III), 10 Dec 1948, states: ‘Everyone has the right freely to participate in the cultural life of the community…’.

³³ Recommendation on Participation in Cultural Life, above, n 31, Art 4, chapeau and subsection (q)(i).Google Scholar

³⁴ Declaration on the Responsibilities of the Present Generations Towards Future Generations, 12 Nov 1997, UNESCO Doc 29C/Res 44, preamble, first recital.Google Scholar

³⁵ Ibid, preamble, second recital.

³⁶ Ibid, preamble, twelfth recital.

³⁷ UNESCO Universal Declaration on Cultural Diversity, 2 11 2001, UNESCO Doc 31C/Res 25, Annex I.Google Scholar

³⁸ Ibid, preamble, first recital.

³⁹ Ibid, preamble, fourth recital.

⁴⁰ See ibid.nl.

⁴¹ For a chronology of the events in question, and some of the international reaction to them, see UNESCO Doc WHC-01/CONF.208/23,4–11.Google Scholar

⁴² See also T Georgopoulos, ‘Avez-vous bien dit “crime contre la culture”? La protection internationale des monuments historiques’ (2001) 54 RHDI 459 at 471–2. For this reason, it is impossible to agree with Francioni and Lenzerini's assertion that the laws of armed conflict were applicable to the situation: see F Francioni and F Lenzerini, The Destruction of the Buddhas of Bamyan and International Law (2002), copy on file with author, 23–5, 28–30.Google Scholar

⁴³ The apparent assertion to the contrary by the Director of UNESCO's Division of Cultural Heritage, Sector for Culture (Bureau of the World Heritage Committee, Twenty-Fifth Session, 25–30 June 2001, Report of the Rapporteur, UNESCO Doc WHC-2001/CONF.205/10 para 1.9) is without merit. The reality is that, while Art 19 of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 249 UNTS 240, gives the Convention limited applicability during armed conflicts not of an international character, the concept of belligerent occupation is limited to the occupation of foreign territory during international armed conflict.Google Scholar

⁴⁴ Afghanistan ratified the Convention on 20 Mar 1979. On 21 Dec 1981, it nominated the monuments of the Bamiyan valley for inclusion in the World Heritage List. The nomination was received by the Sector for Culture of the Division of Cultural Heritage of UNESCO on 14 Apr 1982. See UNESCO Doc WHC-01/CONF.208/23, 2. This nomination had the legal effect of rendering the Convention applicable to the Buddhas of Bamiyan (see above, n 7), and the wilful damage and eventual destruction of the Buddhas were clear breaches of the obligation imposed by Art 4.Google Scholar

⁴⁵ It was suggested by the Director of UNESCO's Division of Cultural Heritage, Sector for Culture that the Convention ‘does not apply to civil conflicts’: Bureau of the World Heritage Committee, Twenty-Fifth Session, 25–30 June 2001, Report of the Rapporteur, above n 43 para 1.9. It is true that, in the context of hostilities, the international humanitarian law applicable to noninternational armed conflicts serves as lex specialis to the lex generalis of the World Heritage Convention. But no provision of the Convention states that it does not apply as such in the event of armed conflict. Moreover, as stated above, there were no hostilities in Bamiyan at the times in question; and if the Convention were inapplicable whenever there is a non-international armed conflict somewhere on the territory of a State Party, it would not have applied to Westminster Abbey during the Troubles in Northern Ireland or to the historic areas of Istanbul during the fighting in the Kurdish regions of Turkey—an absurd proposition. As for the legal effect of the absence of the Buddhas from the World Heritage List, see above, ns 7 and 44. Finally, pace the Director of UNESCO's Division of Cultural Heritage, Sector for Culture (ibid), the fact that the Taliban remained unrecognized as the Government of Afghanistan by all but three states and was not the government accredited to the UN is irrelevant to the State responsibility of Afghanistan: see also Francioni and Lenzerini, above n 42,19–20

⁴⁶ Resolution on the protection of the cultural heritage of Afghanistan adopted by the General Assembly of States Parties to the World Heritage Convention at its thirteenth session (Paris, 30–31 Oct 2001), reproduced at UNESCO Doc WHC-01/CONF.208/23, 12.Google Scholar

⁴⁷ UNESCO Doc 31C/Res 26, 2 Nov 2001.Google Scholar

⁴⁸ ibid, para 1.

⁴⁹ ibid paras 2 and 3. Such destruction was declared to include looting and illicit excavations.

⁵⁰ ibid, para 4.

⁵¹ As well as expressing its concern over the vandalism and destruction of Afghan monuments, the General Assembly addressed the looting of Afghanistan's cultural heritage. It ‘call[ed] upon all Afghan parties, in particular the Taliban, to protect the cultural and historic relics…of Afghanistan from acts o f…theft, and requested] all Member States to take appropriate measures to prevent the looting of cultural artifacts and to ensure their return to Afghanistan’: see GA res 53/203A, 18 Dec 1998, para 21; GA res 54/189A, 17 Dec 1999, para 30; and GA res 55/174A, 19 Dec 2000, para 30. Similarly, i t ‘ [e]xpresse[d] its deep concern at reports o f…looting of cultural artifacts in Afghanistan] and once again ‘request[ed] all Member States to take appropriate measures to prevent the looting of cultural artifacts and to ensure their return to Afghanistan’: see GA res 53/165, 9 Dec 1998, para 16; GA res 54/185,17 Dec 1999, para 16; and GA res 55/119, 4 Dec 2000, para 19; see too, almost identically, GA res 52/145,12 Dec 1997, para 17.]

⁵² In parallel with the General Assembly/s activities, the Security Council—which Member States, in accordance with Art 24 (1) of the Charter, recognize as acting on their behalf—reaffirmed in the preamble to SC res 1214 (1998) ‘its respect for [Afghanistan's] cultural and historical heritage’. It repeated this reaffirmation in the respective preambles to SC res 1267 (1999) and SC res 1333 (2000).Google Scholar

⁵³ GA res 53/165, 9 Dec 1998 (adopted without a vote).Google Scholar

⁵⁴ ibid, para 16.

⁵⁵ GA res 54/185, 17 Dec 1999 (adopted without a vote), para 16.Google Scholar

⁵⁶ GA res 55/119, 4 Dec 2000 (adopted without a vote), para 19.Google Scholar

⁵⁷ See the first recital of each respective preamble.Google Scholar

⁵⁸ See Commission on Human Rights res 2000/18, 18 Apr 2000 (adopted without a vote), preamble, first recital and para 14.Google Scholar

⁵⁹ Commission on Human Rights res 1998/70, 21 Apr 1998 (adopted without a vote), preamble, first recital; Commission on Human Rights res 1999/9,23 Apr 1999 (adopted without a vote), preamble, first recital.Google Scholar

⁶⁰ Commission on HumanHuman Rights res 1998/70, para 2, chapeau and subpara (g).Google Scholar

⁶¹ Commission on Human Rights res 1999/9, para 12, chapeau and subpara (e).Google Scholar

⁶² GA res 53/203A, 18 Dec 1998 (adopted without a vote), para 21.Google Scholar

⁶³ GA res 54/189A, 17 Dec 1999 (adopted without a vote), para 30.Google Scholar

⁶⁴ G4 GA res 55/174A, 19 Dec 2000 (adopted without a vote), para 30.Google Scholar

⁶⁵ GA res 55/243, 9 Mar 2001 (adopted without a vote).Google Scholar

⁶⁶ ibid, preamble, second, fourth, and sixth recitals respectively.

⁶⁷ See UNESCO Doc WHC-01/CONF.208/23, 5; ‘Welcome to our beautiful country…Mullahs bid to attract tourists to tragic Afghanistan’, Observer, 5 11 2000; ‘Lost treasures of Kabul’, Guardian, 17 Nov 2000.Google Scholar

⁶⁸ See UN GAOR, Fifty-fifth Session, 94th Plenary Meeting, 9 Mar 2001, UN Doc A/55/PV.94, 12. It is possible that the Ukrainian ambassador to the General Assembly was using the phrase ‘in particular’ in the sense of ‘specifically’.Google Scholar

⁶⁹ Declaration by the Presidency on behalf of the European Union on destruction of all statues in Afghanistan, Brussels, 1 Mar 2001 <http://www.eu2001.se/eu2001/news/news_read.asp?iInformationID=12480>. This statement was repeated verbatim by the Swedish ambassador to the UN General Assembly, speaking on behalf of the EU: see UN GAOR, above, n 68, 2–3..+This+statement+was+repeated+verbatim+by+the+Swedish+ambassador+to+the+UN+General+Assembly,+speaking+on+behalf+of+the+EU:+see+UN+GAOR,+above,+n+68,+2–3.>Google Scholar

⁷⁰ ibidDeclaration by the Presidency on behalf of the European Union, ibid In addition, in the UN General Assembly, Ukraine aligned itself with the EU's statement: see UN GAOR, ibid, 11–12.

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⁸¹ ‘Federal Government appeals to the Taliban Government in Kabul: Afghanistan bears responsibility for preserving the cultural heritage’, German Foreign Office, Berlin, 1 Mar 2001 <http://www.auswaertiges-amt.de/www/en/infoservice/presse/index_html?bereich_id=9&type_id=2&archiv_id=1272&detail=l>. Germany was instrumental in drafting GA res 55/243, and introduced it to the General Assembly: see UN GAOR, above, n 68,1. In the ensuing debate, Germany ‘strongly condemned] the Taliban's acts, which [destroy]ed] the cultural heritage of humanity‘: ibid, 1 and 2 respectively.

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⁸⁶ ‘Japan's Response to Taliban's Edict to Destroy Statues’, Ministry of Foreign Affairs of Japan, Press Release, Tokyo, 7 Mar 2001 <http://www.mofa.go.jp/announce/announce/2001/3/0307.html>. For further measures taken by Japan, see ibid. In the UN General Assembly, Japan ‘deplore[] the destruction of the historical statues and monuments of Afghanistan’, which were ‘truly the common heritage of all humankind’: UN GAOR, above, n 68. 4. Similarly, the South Korean representative to the General Assembly characterized the Buddhas as ‘an irreplaceable part of the cultural heritage of mankind’, and affirmed that his country ‘would fully participate in the efforts of the international community to protect the common heritage of mankind’: ibid, 9.

⁸⁷ ‘Taliban Fire Mortars at Afghan Buddha Statues’, Reuters, Kabul, 2 Mar 2001. The Nepalese ambassador to the UN General Assembly described the Buddhas as ‘invaluable treasures of [the’ world cultural heritage’: UN GAOR, ibid, 12.

⁸⁸ ‘Taliban Gather Explosives to Smash Afghan Statues’, Reuters, Kabul, 2 03 2001Google Scholar

⁸⁹ ‘Afghans Smash Ancient Statues, Defy World Appeals’, Reuters, Islamabad, 1 Mar 2001.Google Scholar

⁹⁰ ‘Foreign Minister Expresses Concern on [sic] the Threat to the World Famous Buddha Statues in Afghanistan’, Ministry of Foreign Affairs of Sri Lanka, Sri Lanka News Update, 2 Mar 2001 <http://www.lanka.net/lankaupdate/02%20March%202001.htmMkupdate2>. Similarly, in the UN General Assembly, Thailand called the Buddhas ‘an invaluable part of Afghanistan's rich cultural heritage, and indeed of the common cultural heritage of mankind’: UN GAOR, above, n 68, 11; Bhutan, ‘strongly condemn[ing]’ their destruction, ‘conside[red] the unique Buddha statues of Bamiyan to be not only a priceless heritage of the Afghan people but also a common heritage of humankind’: ibid, 6; and Cambodia decried the destruction of the Buddhas as ‘a great loss to Afghanistan [and] an irreparable loss to humanity as a whole’, since they were ‘the cultural heritage of mankind’: ibid, 13.

⁹¹ ‘Taliban demolish ancient statues. Afghani leaders ignore global pleas to preserve giant Buddha figures’, MSNBC News Services, 3 Mar 2001.Google Scholar

⁹² ‘Museums Interested in Plan to Save Afghan Art’, Reuters, New York, 2 Mar 2001. In the UN General Assembly, the Iranian representative described the Buddhas as ‘part of the cultural heritage of humanity’, which should be ‘preserved for the benefit of present and future generations’: UN GAOR, above, n 68, 10 and 11 respectively. Similarly, the Egyptian ambassador to the General Assembly expressed the conviction that ‘the historical heritage of the various civilizations belongs to all humanity, which should seek to safeguard and to ensure its continuity…’: ibid, 9.

⁹³ Ministry of Foreign Affairs of Pakistan, Press Release, Islamabad, 1 Mar 2001 <http://www.forisb.org/pr/2001/PR01-51.htm>; see also ‘Statement by Mr Abdul Sattar, Foreign Minister of Pakistan’, Ministry of Foreign Affairs of Pakistan, Press Release, Jeddah, 2 Mar 2001 <http://www.forisb.org/pr/2001/PR01-51a.htm>. Pakistan recalled this appeal verbatim in the UN General Assembly: UN GAOR, ibid, 10.

⁹⁴ Ministry of Foreign Affairs of Pakistan, Press Release, Islamabad, 10 Mar 2001 <http://wwwiorisb.org/pr/2001/PR01-56.htm>..>Google Scholar

⁹⁵ See North Sea Continental Shelf Cases, above, n 18, at para 72.Google Scholar

⁹⁶ Rather than the hortatory ‘…should…’ or ‘It is recommended that…’, Art 7 of the Declaration on Cultural Diversity, above, n 37, uses the mandatory ‘must’ (even if ‘…shall…’ is more unambiguously legal). At the same time, it employs the passive construction ‘heritage…must be preserved’, rather than the more typical active construction ‘States have a duty…’ or the like, suggesting an effort on the part of the General Conference to avoid the phraseology of law.Google Scholar

⁹⁷ See Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage, above, n 26, Art 4 (‘should’); Recommendation on Participation by the People at Large in Cultural Life and their Contribution to It, above, n 31, Art 4 (‘It is recommended that…’).Google Scholar

⁹⁸ See Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage, ibid, Art 4; Recommendation on Participation by the People at Large in Cultural Life and their Contribution to It, ibid, Art 4.

⁹⁹ See Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage, ibid, Art 4; Declaration on the Responsibilities of the Present Generations Towards Future Generations, above, n 34, Art 7.

¹⁰⁰ In international legal terms, ‘responsibility’ is the result of breaching an ‘obligation’. It is not the obligation itself.Google Scholar

¹⁰¹ Declaration on the Responsibilities.of the Present Generations Towards Future Generations, above, n 34, preamble (twelfth recital).Google Scholar

¹⁰² The two are unhelpfully confused in Georgopoulos, above n 42, at 468–9 and 474–5. The fact that neither is plausible as a statement of custom contemporaneous with the Taliban's acts increases, in turn, the probability that the States Parties' intention was purely rhetorical. Nor, given the general principle of criminal law expressed in the maxim nullum crimen sine lege, is it probable that the General Assembly of States Parties was positing ex post facto a novel customary rule to the effect that the wilful destruction of at least certain monuments in peacetime gives rise either to State or individual criminal responsibilityGoogle Scholar

¹⁰³ See above, n 9. It is conceded that this point might assume too much by way of international legal expertise of the delegates to the General Assembly of the States Parties to the Convention.Google Scholar

¹⁰⁴ See, eg, Art 4 of the ILC's Draft Code of Crimes against the Peace and Security of Mankind, Yearbook of the International Law Commission 1996, Vol II (2). The distinction is reflected in Art 25 (4) of the Rome Statute of the International Criminal Court, UN Doc A/CONF.183/9, English text as corrected.Google Scholar

¹⁰⁵ That this Draft Declaration is not intended to assert a customary prohibition on the peacetime destruction of cultural heritage is foreshadowed in the background paper to the resolution: see UNESCO Doc 31 C/46,12 Sept 2001, para 6 (c).Google Scholar

¹⁰⁶ See UN GAOR, above, n 68, 12. The rider is ambiguous to the extent that the phrase ‘in particular’ can be used to mean ‘specifically’.Google Scholar

¹⁰⁷ It is highly unlikely that it was intended as a formal reference to State criminal responsibility, for the reasons outlined above and in light of the US's consistent opposition to the concept of State criminal responsibility. It is equally unlikely that individual criminal responsibility was being suggested, again for reasons already discussed and given the semantically significant divergence between the chosen phrase ‘crime against humankind’ and the legal term of art ‘crime against humanity’.Google Scholar

¹⁰⁸ ‘…indeed, a sacrilege to humanity, to the civilisational and cultural inheritance of allmankind…’.Google Scholar

¹⁰⁹ Two things suggest a rhetorical import. First, in formal legal terms Afghanistan would bear responsibility not ‘for preserving the world cultural heritage on its territory’ but for failing to do so. Secondly one does not speak of ‘great’ State responsibility: a State is responsible or it is not, regardless of the extent of reparation owed. (Nor is it irrelevant that the German representative in the UN General Assembly, in ‘strongly condemn[ing]’ the Taliban's deeds, characterized them merely as ‘irresponsible acts of religious intolerance’ and as ‘barbarism’: see UN GAOR, above, n 68, 1 and 2 respectively.) Moreover, even if a legal meaning was intended, it is unclear whether the responsibility asserted is referable to custom or to the Convention. The use of the phrase ‘world cultural heritage’ would perhaps imply the latter.Google Scholar

¹¹⁰ Note that, even where an international obligation is implicated, protest and other forms of diplomatic censure do not amount to the invocation of State responsibility, so that even States not entitled to invoke such responsibility under either Art 42 or Art 48 of the ILC's Articles are nonetheless entitled to have their say, as it were: see ILC, above, n 9, commentary to ARSIWA Art 42, para (2), 294–5; and Crawford, above, n 9, 42. A fortiori if, as here, no international obligation is involved.Google Scholar

¹¹¹ For the prohibition on intervention, see Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, GA res 2131 (XX), 21 Dec 1965; Declaration on Principles of International Law concerning Friendly Relations and Co-operation Among States in accordance with the Charter of the United Nations, GA res 2625 (XXV), 24 Oct 1970, third section; Declaration on the Strengthening of International Security, GA res 2734 (XXV), 16 Dec 1970, paras 2,4, and 5; Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, GA res 36/1103, 9 Dec 1981. The prohibition on intervention, a corollary of the sovereign equality of States, was held to be a rule of general international law in Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America), Merits, Judgment, ICJ Rep 1986,14, at para 202. In the context of the UN, see UN Charter, Art 2 (7); and, as specifically regards UNESCO, see Constitution of the United Nations Educational, Scientific and Cultural Organization, Art I (3).Google Scholar

¹¹² See North Sea Continental Shelf Cases, above, n 18, at para 74.Google Scholar

¹¹³ As for UNESCO, a UN specialized agency, it is clear that the constitutional prohibition on its intervention ‘in matters which are essentially within [a Member State's] domestic jurisdiction’ (Constitution of the United Nations Educational, Scientific and Cultural Organization, Art I (3)) does not prevent it from intervening to ‘assur[e] the conservation and protection of the world's inheritance of…works of art and monuments of history’, in accordance with the mandate accorded it by Art I (2)(c) of its Constitution. In cases involving non-States Members of the Organization, the general permissive rule discussed in the text would still permit such intervention.Google Scholar

¹¹⁴ In the words of Baxter, once a matter has become the subject of even a ‘soft’ international norm, it ‘can no longer be asserted to be one within the reserved domain or domestic jurisdiction of the State’: Baxter, RR, ‘International Law in “Her Infinite Variety” ’ (1980) 29 ICLQ 549, at 565.Google Scholar

¹¹⁵ The Recommendation on Participation by the People at Large in Cultural Life and their Contribution to It, above, n 31, Art 4, chapeau and subsection (q)(i), limits itself to ‘the heritage of the past, and particularly ancient monuments’, excluding the architectural and artistic heritage.Google Scholar

¹¹⁶ See ARSIWA, Art 54 and ILC, above, n 9, commentary to ARSIWA Art 54, 350–5; Crawford, above, n 9,54–6; Koskenniemi, M, ‘Solidarity Measures: State Responsibility as a New International Order?’ (2001) 72 BYIL 337.Google Scholar

¹¹⁷ See ARSIWA, , Art 51: ‘Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.’Google Scholar

¹¹⁸ Proportionality does not necessarily equate with reciprocity. That is, countermeasures need not involve the breach of an identical obligation. At the same time, reciprocity obviously makes the assessment of proportionality more straightforward.Google Scholar

¹¹⁹ Recall that deliberate damage by a state to cultural heritage situated on its territory constitutes a violation of the right to take part in cultural life recognized in Art 27 of the Universal Declaration and Art 15 of the ICESCR. In this light, depending on the interpretation of the word ‘fundamental’, countermeasures involving damage to cultural heritage might—although, it has to be said, probably would not—fall foul of the stipulation in ARSIWA, Art 50 (l)(b) that‘[c]ountermeasures shall not affect…obligations for the protection of undamental human rights’.Google Scholar

¹²⁰ Although perhaps not too late to stop damage becoming destruction, in cases of deterioration or piecemeal harm.Google Scholar

¹²¹ Text on file with author.Google Scholar

¹²² See above, at 180.Google Scholar

¹²³ See the resolution ‘Acts constituting a crime against the common heritage of humanity’, above at 180. More specifically, UNESCO Doc 31 C/46, para 6 (c) states that the Declaration/would not be intended to create obligations for States, but would restate the fundamental principles of the existing legal instruments…’.Google Scholar

¹²⁴ In support of UNESCO's own right to intervene, the preamble (third recital) to the Declaration cites Art I (2)(c) of the Organization's Constitution.Google Scholar